Austlii Web Exercise - Article Example

Student’s Name: Instructors Name: Grade Course: Date: Assessment Item 1 – Individual Assignment Question 1: Austlii Web Exercise Case: Sorbello & Ors v. Sorbello & Anor [2005] QSC 219 (12 August 2005) 1. The hearing of the above-mentioned cases’ venue was the Supreme Court of Queensland,Queensland, Australia. The court ordered that the justice involved in the case against Mrs. Sorbello is that the case be dismissed due to insufficient lack of evidence by the plaintiff. According to Judge Mullins, Mrs. Andersons evidence conflicted with key ideas presented before the court and that most of her answers at the time of the proceeding were irresponsive to the questions posed. He concludes that Mrs. Anderson’s tendency to interpret her events eluding questions was doubtful. This is evident as she reiterates that she recorded details pertaining to conversations made with the first defendant during the period of 1997 and 1998 in her 1997 diary. 2. The four main catchwords that best describe the proceedings of the above-mentioned case are as follows: GENERAL CONTACTUAL PRINCIPLES, OFFER AND ACCEPTANCE, MATTERS NOT GIVING RISE TO BINDING CONTRACT and AGREEMENT NOT INTENDED TO CREATE LEGAL RELATIONS. The aim of the aforementioned catchwords is to prelude events that reflect where wife diagnosed with terminal illness – where discussions took place between wife and husband concerning how wife’s life insurance payout would be used to benefit their children – where husband was nominated beneficiary under the policy – where after wife’s death dispute between wife’s mother and husband as to whether wife’s conversations with the husband evidenced an intention by the husband and wife to create legal relations – whether these conversations constituted a contract for the benefit of the plaintiffs within the terms of s 55 Property Law Act 1974 (Austlii). 3. The plaintiffs in the case are Gina shez Maria Sorbello, Jai Desmond Sorbello and Andre Giovani Sorbello (by his litigation guardian Beryl Emily Anderson). The defendants are John Sorbello and Crown Imports International PTY Ltd ACN 070 946 799. 4. Counsels N J. Thompson who acts for the plaintiffs and APJ Collins who acts for the defendants represent the two parties. On the other hand, the solicitor representing the plaintiffs is the Gray’s Professional Service Group and the solicitor for the defendants is Fitz-Walter. 5. The judge’s decision was dismissal of hearing hence reiterating that he would only listen to submissions provided in accordance to costs. He eventually decided that Mrs. Anderson would personally take up responsibility and accept all costs ordered against Andre as she was his litigation guardian. Question 2: Short Answer Questions 1. a) The common law is also known as a precedent or case law. Judges through court decisions and tribunals of the same capacity as the courts agree upon the common law. With regard to this, these decisions are of utmost importance as legislative statutes and the executive branch actions are not responsible for such decisions. The common legal system used in Australia is a system that acts within provisions of precedential weight with regard to the common law. This is evident through the principle of treating similar facts differently and on different occasions thus rendering it unfair. In light of the decisions made, the precedent body assumes the role of common law through binding future decisions. This explanation follows in the scene below: Considering a disagreement by parties involved concerning the law, an idealized common law court takes the mandate and looks into past precedential decisions of germane courts. If these courts find details concerning a dispute resolved in the past, the court follows the same procedure and reasoning used arrive at a decision. Therefore, the principal used to arrive at such decision is the stare decisis. If a court realizes fundamental distinct facts concerning previous cases, judges bear responsibility, as the law requires formulating a law through creating a precedent. Following this process, decisions arrived at become precedent and thus used by courts. b) Jurors bear the responsibility of determining whether cases go to trial or not. In today’s society, the juror acts as an investigator while the Judge listens to trials regarding the law. The trial jury hears evidence in a given trial brought forward by the plaintiff and the defendant. The process follow deliberation conducted after the jury has listened to evidence thus making use of the jury instructions received from the judge. From here, the jury delivers a verdict. The verdict delivered requires a majority of votes. This can either be unanimous in nature while other jurisdictions can consider a majority or supermajority for the delivery of the verdict to be successful. In some occasions, a jury may fail to come up with a verdict. This type of jury defines itself as a hung jury. The size of a jury varies with nature of a case pending. An example is a jury listening to a criminal case. Such juries normally consist of 12 jurors. This may differ due to demographic changes. This means that in some places jurors listening to a case might be more. An example is Scotland where jurors in a criminal case add up to 15. The Grand jury is also an example of a jury. Grand jury’s normally confined to federal courts determine whether a criminal trial is to proceed according to the evidence presented. In this regard, grand juries undertake their duties by examining the weight of the evidence given to them by a prosecutor and in turn issue indictments. Traditionally, grand juries were larger than petit juries. Bearing in mind importance of Grand juries, they do not require prior notification to suspects concerning proceedings hence possess mandate to file charges in form of sealed indictment against suspects who are unaware leading to arrests by police. 2. a) Terra nullis is a Latin expression derived from the Roman law. It states that unused land does not belong to any individual. This prevents individuals from claiming ownership of unused land. Britain introduced the Doctrine of Terra nullius during the pre-colonial period hence stating that no proof existed to show that Aborigines rightfully owned Australia. This forced the British to vest ownership of the entire continent under the British government. During the voyage to the content of Oceania, Captain Cook descended on a tiny island off the northern most part of Australia. Following his presence here, cook claimed the whole territory of Eastern Australia and proclaimed it a British territory. During his voyage on the northern part of the east coast, Cook had only set foot in Botany Bay and Cooktown. Despite having done this, Cook had insufficient knowledge concerning the vast land in Australia. However, he was aware that the inhabitants of the land were Aborigines. He had seen them along the coast and believed that the land along the coastal line belonged to them. Though this was the case, he was unsure of how he would convince the aborigines that the land belonged to Britain. With Britain desperation regarding possession of land, they were unsure of the process to use in order to send some of its convicts to occupy land belonging to the Eora tribe hence settle there without consulting them. The main purpose for the Britons forceful occupation was there considerations regarding Aborigines as illegitimate owners of the land. Cook went ahead and pronounced the territory as New South Wales thus considering it as terra nullius. The Britons reiterate that Aborigines might have arrived on the land earlier but never used the land accordingly and also had no proof of ownership. b) The High court’s decision pertaining to Mobo’s case on the 3rd day of June 1992 issued a ruling that recognition of land title belonging to Indigenous people was appropriate according to common law. Findings stated that land title belonging to Aborigines dated back from continuation within common law over their rights pertaining land that extends from Colonization of Australia by Europeans. An outline given by the court decision proved that in the absence of effective termination by the crown and the title presented the occupants a right to possess their own land through inheritance in accordance to customs and lores. In the event, the judgment rejected fiction involved with Terra Nullius thus drawing Australia closer to countries using common law such as USA and Canada. The Mabo case involved the rights of the aborigines in 1992. The High Court of Australia revisited the case in 1996 in accordance to the subject of the title in the native wik. The hearing led to arrival of a decision that saw a 4-3 majority hence the decision was later termed as the wiks decision. The decision stated that traditional titles and leases could exist on equal basis over an area of land and that the law granted Aborigines permission to hunt and perform sacred ceremonies without exercising ownership of land. Through decision by the court regarding Mabo’s case, Aborigines were able to reclaim their lost land with limitations appropriated under the doctrine of terra nullius. This decision has led to controversy with native groups placing lawsuits in courts requesting for restoration of land ownership rights. This has led to approximately 3000 agreements regarding restoration of land that has been beneficial to most of the Aborigines, as they have restored significant areas of land in Australia. 3. a) Australia being one of the English colonies also adapted the merging of common law and equity. This allows the use of common law and equity in the same court hence the availability applying to Australian courts. Though this applies to other parts of the world, different procedural laws accept it. b) Under the common law, the court rules out and decides that awards be given in terms of monies for damages caused thus only recognizes the legal owner of the property of concern. While this is the case, the courts of equity are involve the issuance of injunctive relief that is an order given by a court to a party to compensate someone, stop doing something or even ask the party to do something thus recognizing trusts of the property of concern. These are the main differences concerning remedies given by the common law and equity. 4. In normal terms, magistrates in these courts can only deal with civil matters where the amounts claims by way of damages do not exceed the amount the relevant legislations determine. a) Most of the States the amount sums up to $ 60,000 except for South Australia, which amounts to $ 80,000, and the Northern territory that is $ 100,000. Civil matters involved include family matters (Chiarella, 2007). b) The district courts have limitations of jurisdictions in terms of finances in relation to civil matters. Just like the magistrates courts, the amount varies between the states. An example is in the New South Wales State; jurisdiction of the district courts to deal with civil matters has limitations to matters where the amount claims by way of damages do not exceed $750,000 and has no limitations in relation to motor vehicle injury claims (Chiarella, 2007). The civil matters in such cases include land issues. c) This is the highest and senior most court in a state. The court has no limitations regarding jurisdictions in civil matters. Civil matters include property loss and damages (Chiarella, 2007). d) Supreme Court of appeal listens to appeals from lower courts. A bench of three judges presides over a hearing hence come up with strategic decisions. 5. a) Examples of Public laws include administrative laws and criminal law that govern the relationship between an individual and the state. Private laws include the General Obligations Law and the General Business Law which are laws relating to obligations. b) A burden of proof is a level of proof required in context of a legal action in order to convince the court that a given proposition is indeed correct. The proof is dependant on circumstances of the proposition. While this is the case, the legal burden has perceptions of an obligation that persists on a single party for the due duration of the claim. Immediately the court discharges the burden the trier is satisfied and the party involved with carrying the body succeeds in its claims. The allocation grant to burden of proof in civil and criminal matters draws attention to the person who is likely to lose a case. This allocation is a decision formulated by the common law and statutes. In criminal trials, the presumption of innocence implies that the prosecution will has the mandate to the burden of proof though the ability to reverse it is through some express or implied statutory provisions. Question 3: Short problem question 1) The legal issue presented in the case concerns the validity of the agreement/contract. This implication lies in the agreement between Janet and I, which is already expired thus nullified. Jane was to pick up the car by 5pm the next day after settling of the agreement. Though she agrees to the terms, Janet fails to turn up at 5 on the next day and ends up ringing me the next day after she was to pick the car informing me that she would come to pick the car. Bearing in mind that we had a contract agreement, I decide to change up my mind about selling the car. With regard to this, I have acted according to the specified laws under the contract laws by informing Janet that the validity of our contract was due until 5pm the next day after the agreement as she did not show up at 5 pm as agreed thus forcing me to terminate the contract with immediate effect after its expiry. The validity period in a contract is very important as this determines the interest of both parties. If one party fails to meet expectations, the other party is entitled to revoke any offer that is in existence considering that the other party did not meet the agreement as expected. 2) The case law that applies to this case is the law of contract – A contract is a clause that formalizes an agreement between parties in relation to a given subject. Contracts intend to cover matters regarding issues that include property, employment terms, sales of goods et cetera. In this case, I have agreed to sell off my car to Janet who is willing to buy. She informs me that she has the money in cash and I agree to receive the money hence release the car to her possession if she shows up. Having agreed on that Janet and I need to act as the contract states. The contract has an expiry day of 5 pm the next day failure to which it expires leading to termination of the contract in place. Therefore, all parties involved expect to abide by the law and willing to meet expectations of the interested party. Incase I withdraw the contract before due time; Janet is entitled to sue me for breach of contract. Janet should also play her role by ensuring that she shows up the next day at 5 pm as agreed failure to which I have the right to call off any agreement that might have been in place. Contracts involve certain elements that make it enforceable. This are as follows: a) Mutual Consent – Here parties involved share a common mutual understanding of what the contract entails. An example is the contract sale of the car I had proposed to Janet. Janet expects that she is deemed to obtain the car while I am certain that I am contracting the sale of the car. With this in place, it is assumed that there is no meeting of minds hence the contract is rendered in an unenforceable manner. b) Offer and Acceptance – For a contract to exist, an offer has to be made to another party who is willing to accept the offer. The example of selling the car is a contract brought forward. With the offer I made to Janet; Janet’s acceptance concerning the offer acts as a necessary part of binding the contract for the sale of the car. c) Mutual consideration – While the validity of contract consideration may be subject to change on the basis that it is illusory, one of the parties’ expectations is to receive an item that the other was obligated to provide according to the agreement. d) Performance or Delivery – In order for the contract to be enforceable, the contemplated action involving the contract must be completed. For example, if Janet came within the agreed time as stated within the agreement, she would have picked the car as agreed. However, because Janet did not fulfill her promise, I have the sole right to call-off the contract. With regard to this, a party may allege that the other party has breached the contract by reciting that it has performed its task in fulfilling the duties as stated in the contract whereas the other party has failed to perform her duties and obligations. e) Good Faith – It is implicit concerning all contracts that the parties involved are acting in good faith. An example includes the sale of the car. Considering the sale of the car is in progress, Janet is aware that she is purchasing a car. In the event, I secretly intend to sell the buyer a piece of land instead of the car. Considering that I am now selling an item contrary to the agreement, my acts regarding good faith make the contract enforceable. 3) The advertisement hereof is considered as an invitation to treat. This offer is open for negotiations and in neither way does it act as a binding. Generally, advertisements like the case for selling the car is an invitation to treat as the person advertising the sale of the car is not by any means compelled to sell the car to every customer but customers who meet required necessities as stated by the law. In this regard, any agreement made between parties must be fulfilled failure to which cancellation of the invitation is due and considerations are due under new terms. It is therefore important to ensure that an invitation to treat is acted upon based on the agreement made to avoid conflict between two parties. 4) An offeror is the first one to make an offer to the offeree. This means property must be presented keeping in mind the following ideas are put in place. The offeror must agree to the terms and conditions put in place hence act acoording to the terms as stated in the contract.He/she should ensure that the terms stipulated in the offer are reasonable. The offer concerning this case was accepted with regard to the terms of agreement negotiated and was binding to Janet to pick up the car by 5 pm the next day as agreed. 5) According to the case presented, Janet and I are in an agreement as far as the terms of offer regarding the sale/purchase of the car concerned. Janet failed to adhere to the agreed terms put in place that involved the sale of the car which was to be paid for in cash and collected latest at 5 pm the next day. She is therefore not entitled to the car as the offeror was not bound to accept any offer. Secondly, the period granted for the offer to remain open had lapsed and the offeror had rightly changed his mind regarding the offer. In an agreement, the period within which an offer remains open is considered important as this determines the position of the parties involved. It is therefore necessary that the parties involved observe this as it provides the path to be taken when making certain decisions regarding the case at hand. Works Cited Chiarella, M. S. “Nursing and the Law”. State and territory courts. Elsevier, Australia. 2007. Retrieved 14th Apr, 2011 from http://books.google.co.ke/books?id=gnr3keCA2g4C&pg=PA12&lpg=PA12&dq=Civil+matters+and+amounts+claimed+in+local+or+magistrates+courts+%28Australia%29&source=bl&ots=JDFjs9LBG3&sig=thn2k1gMGgr0pxWkzT8J6e-ZsdI&hl=en&ei=RxKnTY3zMc6UtwfDvsGFAQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBgQ6AEwAA#v=onepage&q&f=false  Read More